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State v. Trump

United States District Court, D. Oregon, Eugene Division

August 7, 2019

THE STATE OF OREGON; KATE BROWN, Governor; ELLEN ROSENBLUM, Attorney General; and THE CITY OF PORTLAND, Plaintiffs,
v.
DONALD J. TRUMP, President of the United States, in his official capacity; WILLIAM P. BARR, Attorney General of the United States, in his official capacity; and THE UNITED STATES OF AMERICA, Defendants.

          OPINION AND ORDER

          MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE

         The present dispute touches upon many of the same principles and tensions which have animated our Republic's legal and political discourse since its founding. The President of the United States and his Attorney General seek to advance their policy priorities by pressuring states and localities to comply with two immigration-related laws and by withholding federal funds from jurisdictions which refuse to assist immigration authorities. The laws at issue, 8 U.S.C. §§ 1373 and 1644, prohibit states and localities from enacting rules which prevent their employees from sharing a person's immigration status with federal officials. The State of Oregon and the City of Portland, both of which have been targeted, believe that Sections 1373 and 1644 are unconstitutional intrusions upon their legislative independence. They also believe that the funding conditions imposed by the Attorney General are contrary to the intent of Congress. The case comes before the Court on Defendants' Motion to Dismiss and Plaintiffs' Motion for Summary Judgment. Because Sections 1373 and 1644 violate the Tenth Amendment, and Defendants otherwise lack the authority to withhold the disputed funds, Plaintiffs' motion is GRANTED in part.

         BACKGROUND

         I. The Byrne JAG Program

         The present conflict centers on the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG Program”). See Pub. L. No. 109-162, § 1111, 1119 Stat. 2960, 3094 (2006) (codified as amended at 34 U.S.C. §§ 10151-10158). The Byrne JAG Program is a federal grant program administered by the Office of Justice Programs, a subdivision of the United States Department of Justice. See 34 U.S.C. §§ 10101-10102, 10141, 10151. The purpose of the Byrne JAG Program is to support state and local criminal justice efforts by providing an additional source of funding for personnel, equipment, training, and other needs. Id. § 10152(a)(1). States and localities may use Byrne JAG funds to support criminal justice initiatives in several different areas, including law enforcement, prosecution, crime prevention, corrections, drug treatment, technology, mental health, and victim and witness services. See Id. §§ 10152(a)(1), 10153(a).

         Under the Byrne JAG Program, grants are distributed directly to states and localities according to a formula, the variables of which are derived from a jurisdiction's population and violent crime statistics. 34 U.S.C. § 10156. To receive and draw upon a Byrne JAG award, a jurisdiction must apply to the Attorney General in the form and manner prescribed by statute, see Id. §§ 10153, 10155, and comply with all lawful conditions outlined in the grant solicitation and award documents, see, e.g., Schmidt Decl. Exs. 1, 11, ECF No. 22; Defs.' Req. for Judicial Notice in Supp. Mot. Dismiss (“RJN”) Exs. E, F, ECF No. 15. A jurisdiction, once awarded its statutory share of funds, may also make subawards to local governments and community organizations. 34 U.S.C. § 10152(b). Although funds appropriated by Congress for the Byrne JAG Program must be allocated according to the statutory formula, the Attorney General retains some discretion to reserve and redistribute certain funds. See Id. §§ 10156(f), 101057.

         II. History of Participation

         The State of Oregon had, until 2017, received Byrne JAG funds every year since the program's creation in 2005. Schmidt Decl. ¶ 6; Nordeen Decl. ¶ 2, ECF No. 25; see also RJN Ex. A. During that time, the State of Oregon used its more than $26 million in Byrne JAG funds to support, among other things, programs for mental health treatment, technology improvement, and drug treatment and enforcement. Schmidt Decl. ¶ 9. With respect to the contested FY 2017 award, the State of Oregon plans to use its funds to support specialty courts designed to address root causes of criminal activity and provide statewide assistance to local crime victims. Schmidt Decl. ¶¶ 12, 15, Ex. 4 at 2, 7-8, 16-17. With respect to the contested FY 2018 award, the State of Oregon plans to use its funds to support specialty court programs which target non-violent felony offenders in an integrated, systemic approach to reduce drug use and recidivism while increasing public safety. Schmidt Decl. ¶ 22, Ex. 12 at 1-2, 8-14, 20-21.

         Similarly, the City of Portland had, until 2017, received Byrne JAG funds every year since the program's creation in 2005. Nordeen Decl. ¶ 2; see also RJN, Ex. B. During that time, the City of Portland used its Byrne JAG funds to, among other things, purchase bulletproof vests and special-threat plates, acquire tactical medical kits, install Global Positioning Systems, and add two Victim Advocates to the Portland Police Bureau's Sex Crimes Unit. Nordeen Decl. ¶ 3. In addition, the City of Portland has historically distributed funds to subrecipients Multnomah County and the City of Gresham, which have used those funds to, among other things, support a Neighborhood Deputy District Attorney, purchase police equipment, and add a full-time Parole and Probation Officer. Nordeen Decl. ¶ 4. The City of Portland plans to support similar initiatives with the contested FY 2017 and FY 2018 funds. Nordeen Decl. Exs. 2, 5.

         III. FY 2017 and FY 2018 Funding Conditions

         Starting in 2017, the Attorney General imposed three new immigration-related conditions on the receipt of Byrne JAG funds. See generally Schmidt Decl. Exs. 1-3; Nordeen Decl. Ex. 1; RJN Ex. D. The conditions are included in the FY 2017 state and local solicitations promulgated by the Department of Justice and, more importantly, the award agreements adopted by grantees. See, e.g., Schmidt Decl. Ex. 1; Nordeen Decl. Ex. 1; RJN Ex. D. As relevant here, a jurisdiction must formally agree to each condition prior to drawing upon an award of FY 2017 Byrne JAG funds. See, e.g., RJN Ex. D ¶ 1. The FY 2017 conditions can be summarized as follows:

Notice Condition : A grantee must provide 48 hours' “advance notice”-or as much advance notice as is “practicable”-of the “scheduled release date and time” of any alien in the jurisdiction's custody if the jurisdiction receives a “formal written request” from the United States Department of Homeland Security (“DHS”). RJN Ex. D ¶ 55; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4.
Access Condition : A grantee must allow DHS personnel to “access” any detention facility which it maintains and “meet with individuals who are (or are believed . . . to be) aliens” and “inquire as to their right to be or remain in the United States.” RJN Ex. D ¶ 55; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4.
Compliance Condition : A grantee must certify that it complies with 8 U.S.C. § 1373. RJN Ex. D ¶ 54; see also Schmidt Decl. ¶¶ 13-15, Exs. 1-3; Nordeen Decl. Exs. 1, 4. Section 1373 provides that no “State[] or local government entity or official may . . . prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status . . . of any individual.” 8 U.S.C. § 1373(a).

         In 2018, the Attorney General again imposed immigration-related conditions on the receipt of Byrne JAG funds. See generally Schmidt Decl. Ex. 11; Nordeen Decl. Ex. 4; RJN Exs. E, F. Two of those conditions are substantively indistinguishable from the Notice and Access Conditions described above. RJN Ex. E ¶¶ 45-46; see also Schmidt Decl. ¶ 22, Ex. 11 at 1, 35-37, 42-43; Nordeen Decl. Ex. 4 at 36-37, 42-43. A third condition merely expands the Compliance Condition to include 8 U.S.C. § 1644-a statute which is functionally equivalent to Section 1373- and to require that jurisdictions describe any “laws, policies, or practices related to whether, when, or how employees may communicate with DHS or [Immigration and Customs Enforcement].” Schmidt Decl. Ex. 11 at 27-28, 52; see also Nordeen Decl. Ex. 4 at 52; RJN Ex. E ¶ 47. But a fourth and final FY 2018 condition imposes a new restriction on grantees' conduct:

Disclosure Condition: A grantee must not publicly disclose “federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice” or any “alien who has come to, entered, or remains in the United States” in violation of federal law. RJN Ex. E ¶ 44.[1]

         As with FY 2017 Byrne JAG awards, grantees must formally agree to each of the immigration-related conditions prior to drawing upon their FY 2018 funds. See, e.g., RJN Exs. E, F. Thus, even if a jurisdiction receives a notice of award from the Department of Justice, it may not draw upon those funds until it agrees to the conditions listed in the award document. See RJN Ex. E ¶ 1 (“Failure to comply with any one or more of these award requirements . . . may result in the Office of Justice Programs . . . withhold[ing] award funds, disallow[ing] costs, or suspend[ing] or terminat[ing] the award.”); see also Schmidt Decl. Ex. 11 at 1; Nordeen Decl. Ex. 4 at 1.

         IV. FY 2017 and FY 2018 Awards

         Plaintiffs applied in August 2017 for a FY 2017 Byrne JAG award and in August 2018 for a FY 2018 Byrne JAG award. See Schmidt Decl. ¶¶ 15, 22, Exs. 4, 11; Nordeen Decl. ¶¶ 6, 12, Exs. 2, 5. Based on the statutory formula, the State of Oregon expected to receive $2, 034, 945 for FY 2017 and $2, 092, 704 for FY 2018, Schmidt Decl. Ex. 13 at 1, Ex. 14 at 1, while the City of Portland expected to receive $385, 515 for FY 2017 and $391, 694 for FY 2018, see Nordeen Decl. ¶ 11, Ex. 2. Defendants anticipated issuing Byrne JAG award notifications by September 30, 2017 for FY 2017 grantees and September 30, 2018 for FY 2018 grantees. See Schmidt Decl. Ex. 1 at 31, Ex. 11 at 35; Nordeen Decl. Ex. 1 at 29, Ex. 4 at 35

         As represented at oral argument, however, the State of Oregon did not receive notice of its FY 2017 or FY 2018 Byrne JAG awards until July 2019. That delay was the result of concerns within the Department of Justice that at least one Oregon law, Or. Rev. Stat. § 181A.820, prevents the State of Oregon from satisfying the Notice, Access, and Compliance Conditions. See Schmidt Decl. ¶¶ 17-18, Exs. 6-9. Section 181A.820 provides in relevant part that “[n]o law enforcement agency of the State of Oregon or any political subdivision of the state” may use “agency moneys, equipment, or personnel” to “detect[] or apprehend[]” persons whose only transgression is the violation of “federal immigration laws.”[2] Although the State of Oregon recently received its FY 2017 and FY 2018 awards, the Department of Justice's view of Section 181A.820 is seemingly unchanged. The State of Oregon, as such, cannot accept or draw upon the funds without risking penalties. See, e.g., Schmidt Decl. Ex. 3 (stating that the Department of Justice will, among other actions, “claw back” funds from jurisdictions which violate the challenged conditions).

         The City of Portland is in a similar position. Although the City of Portland received its FY 2017 Byrne JAG award on October 10, 2018, Defendants only issued the award pursuant to a preliminary injunction in City of Evanston v. Sessions, No. 18-cv-4853 (N.D. Ill. Aug. 9, 2018). Defendants have yet to issue the City of Portland its FY 2018 Byrne JAG award. Nordeen Decl. ¶ 14. Despite multiple inquiries from the City of Portland, the Department of Justice has offered no explanation for the ten-month delay. Nordeen Decl. Exs. 6-7. As a political subdivision of the State of Oregon, however, the City of Portland is subject to Section 181A.820. Its Police Bureau is also bound by an internal rule, Directive 810.10, which mirrors Section 181A.820 and prohibits personnel from “enforcing or assisting in the enforcement of federal immigration laws.” RJN Ex. G at 2; see also Nordeen Decl. ¶ 17. Thus, even if Defendants were to issue a FY 2018 award to the City of Portland, it would be unable to accept or draw upon those funds without risking penalties for perceived violations of the Notice, Access, and Compliance Conditions.

         V. Conflicting Policy Priorities

         Defendants maintain that the contested conditions and statutes-and, by implication, the pressure on Plaintiffs to repeal their allegedly incompatible laws and policies-are essential to a properly functioning system of federal immigration laws. See Defs.' Mot. Dismiss 1, ECF No. 14. They point in particular to the extensive intergovernmental coordination and cooperation contemplated by the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-1537. See Defs.' Mot. Dismiss 6-9. As relevant here, that cooperation and coordination includes, among other things, the decision to allow state and local governments to prosecute and punish illegal aliens who commit crimes before allowing the federal government to take immigration measures against those same persons. See 8 U.S.C. § 1231; see also Id. § 1226(c)(1) (mandating that immigration detention for removal proceedings begin only “when the alien is released” from state or local criminal detention). Defendants believe that this and other features of the INA are only practicable if state and local governments provide information and access to immigration authorities.

         Plaintiffs, however, believe that the health, welfare, and public safety of their residents is best served by refraining from the enforcement and administration of federal immigration laws. See Shah Decl. Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8. That determination, they explain, is reflected in the laws and policies targeted by Defendants. See Shah Decl. Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8. According to Plaintiffs, those laws and policies are instrumental to ensuring that all members of their communities feel safe cooperating with and obtaining the assistance of law enforcement agencies. See Shah Decl. ¶¶ Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8. In particular, Plaintiffs believe that, when state and local officials are associated with federal immigration enforcement, vulnerable victims and witnesses are less likely to come forward and report crimes, creating a danger to all members of their communities. See Shah Decl. Exs. 1-4; Nordeen Decl. ¶¶ 16-17, Ex. 8. Plaintiffs have, as such, declined to change their laws and policies in the face of funding pressures from the President and his Attorney General.

         VI. Procedural History of the Lawsuit

         The State of Oregon initiated the present action on November 9, 2018. Shortly thereafter, the City of Portland joined in the suit and, together, the State of Oregon and the City of Portland submitted an amended complaint on November 21, 2018. In their First Amended Complaint (“FAC”), ECF No. 3, Plaintiffs challenge Defendants' authority to impose the Notice, Access, and Disclosure Conditions. They also bring a facial constitutional challenge to Sections 1373 and 1644, the statutes on which the Compliance Condition is based. To remedy their injuries, Plaintiffs seek declaratory, injunctive, and mandamus relief. On March 5, 2019, Defendants filed a Motion to Dismiss. In response, on April 8, Plaintiffs filed a Motion for Summary Judgment, ECF No. 21. After briefing and oral argument, both motions are now before the Court.

         STANDARDS

         I. Motion to Dismiss Under Rule 12(b)(1)

         A motion to dismiss under Fed.R.Civ.P. 12(b)(1) tests the subject matter jurisdiction of a federal court. Under the U.S. Constitution, this Court is without jurisdiction to resolve any claim which is not ripe for review, Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 579 (1985), or which a plaintiff lacks standing to assert, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). At a constitutional minimum, standing requires a plaintiff to show that she has “suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury can be traced to the challenged action and is likely to be redressed by a favorable decision.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (internal quotation marks and citations omitted). Similarly, a claim is ripe within the meaning of Article III if it presents “concrete legal issues” in the context of “actual cases, not abstractions.” United Pub. Workers v. Mitchell, 330 U.S. 75, 89 (1947) (internal quotation marks and citations omitted). The party invoking federal jurisdiction bears the burden of establishing both requirements. Lujan, 504 U.S. at 561.

         II. Motion to Dismiss Under Rule 12(b)(6)

         To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain factual allegations sufficient to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations allow a court to infer the defendant's liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the mere possibility of misconduct.” Id. at 678. When considering a motion to dismiss, a court must accept all allegations of material fact as true and construe those facts in the light most favorable to the non-moving party, Burget v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000), but it is “not bound to accept as true a legal conclusion couched as a factual allegation, ” Twombly, 550 U.S. at 555. If a complaint is dismissed, the court must grant the plaintiff leave to amend unless it “determines that the pleading could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).

         III. Motion for Summary Judgment Under Rule 56(a)

         A district court must award summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it could affect the outcome of the case and an issue is “genuine” if a reasonable jury could find in favor of the non-moving party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citation omitted). When ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If the movant carries her burden, then the non-moving party must present “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (internal quotation marks omitted) (citing Fed.R.Civ.P. 56(e)). The “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient” to avoid summary judgment. Liberty Lobby, Inc., 477 U.S. at 255.

         DISCUSSION

         Plaintiffs challenge the Notice, Access, Compliance, and Disclosure Conditions on three main grounds. First, Plaintiffs argue that Defendants are without constitutional or statutory authority to impose the Notice, Access, and Disclosure Conditions upon recipients of Byrne JAG funds and that the promulgation of those conditions therefore infringes on the power vested in Congress under the Spending Clause of the U.S. Constitution. Second, Plaintiffs contend that, insofar as the Compliance Condition is premised on a valid congressional delegation of condition-making authority, that authority cannot include the conditioning of funds on compliance with statutes which violate the Tenth Amendment. Finally, Plaintiffs argue that, even if they possess the statutory authority to impose all four of the challenged conditions, Defendants run afoul of limitations inherent in the Spending Clause. ...


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